The answer is, probably, but it depends.
MGL c. 151B s.4(10) states that it is illegal: “For any person furnishing credit, services or rental accommodations to discriminate against any individual who is a recipient of federal, state, or local public assistance, including medical assistance, or who is a tenant receiving federal, state, or local housing subsidies, including rental assistance or rental supplements, because the individual is such a recipient, or because of any requirement of such public assistance, rental assistance, or housing subsidy program.”
In Burbank Apts v Kargman, 474 Mass. 107 (2016), the Supreme Judicial Court held that “[i]t is “an unlawful practice … to discriminate against any … *118 tenant receiving [F]ederal, [S]tate, or local housing subsidies … because of any requirement of such … housing subsidy program,” G.L. c. 151B, § 4(10), or to “aid [or] abet” such a violation.19 G.L. c. 151B, §§ 4(5), (10). See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66, 78, 876 N.E.2d 421 (2007). General Laws c. 151B, § 4(10), has the goal of providing “affordable, decent housing for those of low income.” Attorney Gen. v. Brown, 400 Mass. 826, 830 (1987).
The Court, citing the blackletter itself, continued,“[T]he decision not to enroll in a voluntary governmental program by itself [does not] constitute [ …] unlawful discrimination under **405 G.L. c. 151B, § 4(10).” Hennessey v. Berger, 403 Mass. 648, 652 (1988). However, the voluntary nature of a program does not preclude the application of State law ‘mandating participation [in the voluntary Federal program] absent some valid nondiscriminatory reason for not participating.’ Brown, supra.20 In short, although the defendants are not obligated to participate in the project-based subsidy program, that fact alone does not shield them from an adequately pleaded claim.
In Diliddo v. Oxford Street Realty, Inc., et al. 450 Mass. 66 (2007), the Supreme Judicial Court found actionable discrimination under M.G.L. c151B s.4(10), where the landlord’s agents were responsible for picking and leasing to tenants and refused to accept a public rental assistance voucher – and refused to rent to the tenant there based on their unilateral rejection of the terms of the voucher. Diliddo v. Oxford Street Realty, Inc., et al., 450 Mass. 66, 77-80 (2007). Any refusal of RAFT rental assistance seems directly analogous to Diliddo, as the Commonwealth has promulgated state law, which enables the administrative agency to set out policy requirements for the distribution of public rental assistance. St. 2021, c.20, as amended. 400 CMR 6.00 (rental assistance notice requirement). See Housing Court Standing Order 6-20, 3rd Amended Edition, s. 3(b)(3)-(4)(court shall grant a continuance if RAFT application is met during Tier 1 Status Conference) s.3(b)(5)(no judgment shall enter if pending RAFT application, agreements for judgment subject to s.257 as amended), Housing Court Standing Order 6-20, 3rd Amended Edition, s. 3(b)(3)(second tier Tier 2)(2)-(3)(default can enter if party does not appear after notice; trials subject to continuances required under s.2(b)).
The Court in Burbank seemed to carve out an exception to c.151B(4)(10), it seems a relatively small exception to the breadth of the language used in c.151B. I have seen at least one landlord try to argue that, since the tenant qualifies for rental assistance, they cannot sustain the tenancy, and therefore do not have to even comply with program rules for RAFT applications, and, thus, a direct violation of Diliddo.
Attorney Shivick has over a decade of experience litigating in Massachusetts Housing Court and has prosecuted and defended claims in every corner of Massachusetts.